DHS to Allow Remote Verification of I-9 Documents for E-Verify Employers; New I-9 Form Will be Issued

July 24, 2023

Starting August 1, 2023 the Department of Homeland Security (DHS) will permit certain employers to review documents remotely ("an alternative procedure to in-person physical examination") when completing the Form I-9.  DHS plans to publish a final regulation on July 25, 2023 and has issued an advance copy.  DHS will also issue an updated Form I-9 on August 1, 2023. There will be a grace period from August 1 through October 31, 2023 when employers may continue to use the previous Form I-9 version (Edition: 10/21/2019) until the new form becomes mandatory. 

Summary: 

• This new rule is different than the temporary COVID flexibility given to employers and which expires at the end of this month
• This new rule will apply to employers enrolled in E-Verify who are in "good standing" only
• The E-Verify employer must complete an online tutorial that includes fraud awareness and anti-discrimination training
• The remote option for reviewing documents is optional, but employers who choose to use the alternate procedure must use it consistently for all employees at a given worksite or may choose to use it only for remote employees, so long as the employer does not “adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.”
• Within 3 days of hire, the E-Verify employer must
  • Collect and examine all Form I-9 documents (including the front and back of any double-sided documents) to ensure that the documentation “reasonably appears to be genuine.”
  • Conduct a "live video interaction" with the employee, during which the employee must present the same document(s) previously transmitted
  • Indicate on the Form I-9 that an alternative procedure was used to examine documentation to complete Section 2 (or reverification), by completing the corresponding box of the updated (August 1, 2023) Form I-9. If using the 10/21/2019 edition of the Form I-9 during the August 1, 2023–October 31, 2023 grace period, the employer must write “alternative procedure” in the Additional Information field in Section 2. 
  • Retain "clear and legible" copy or copies of the documents (front and back, for 2-sided documents
• In the event of a government audit, the employer must provide copies of the retained document(s)

E-Verify employers who took advantage of the government flexibility during COVID and need to complete the physical inspection of I-9 documents by August 31, 2023 may utilize this remote process starting August 1 as long as they:

• • Were enrolled in E-Verify at the time the employee was hired
  • Created an E-Verify case for that employee
  • Performed a remote Form I-9 document inspection for the employee under COVID flexibility between March 20, 2020 and July 31, 2023

Weaver Schlenger is available to answer questions about this new process. Please contact the Weaver Schlenger attorney with whom you normally work.